37th Congress, 2nd Session
House of Representatives Ex Doc no. 53
PATENT OFFICE REPORT FOR THE YEAR 1861 -- MECHANICAL
LETTER FROM THE COMMISSIONER OF PATENTS,
transmitting the Mechanical Report of the Patent Office for the year 1861

--------------

February 14, 1862 -- Laid on the table, and ordered to be printed.

June 5, 1862 -- Resolved, that twenty thousand extra copies of the Mechanical part of the Patent Office Report for 1861 be printed for the use of the House, and ten thousand copies for the use of the Patent Office.

-------------

UNITED STATES PATENT OFFICE

February 13, 1862

Sir:

I have the honor herewith to transmit the annual report of this office for the year 1861, to be laid before Congress.

I am, very respectfully, your obedient servant,

D. P. HOLLOWAY

Commissioner of Patents

Hon. Galusha A. Grow

Speaker of the House of Representatives, Washington, D.C.

--------------

UNITED STATES PATENT OFFICE

January 31, 1862

Sir:

In conformity with the requirements of the 14th section of the act of March 3, 1837, entitled "An act in addition to the act to promote the progress of science and useful arts," I most respectfully submit the following report:

In the section of the act above referred to it is declared to be the duty of the Commissioner of Patents "to lay before Congress, in the month of January, annually, a detailed statement of the expenditures and payments by him made from said (patent) fund. And it shall also be his duty to lay before Congress, in the month of January, annually, a list of all patents which shall have been granted during the preceding year, designated under proper heads, the subjects of such patents, and furnishing an alphabetical list of the patentees, with their places of residence; and he shall also furnish a list of all patents which shall have become public property during the same period, together with such other information of the state and condition of the Patent Office as may be useful to Congress or to the public."

The first provision of the above instructions to the Commissioner requires "a detailed statement of the expenditures and payments by him made." For a more complete and intelligible exposition of the affairs of the office, I beg leave to submit the following statement:

No. 1.

Number of applications received during the year 4,643
Number of patents granted, including designs, reissues,
and additional improvements 3,340
Number of caveats filed 700
Number of applications for extension of patents 16
Number of patents extended 21
Number of patents expired December 31, 1861 546
=====

Amount to credit of patent fund on January 1, 1861 $89,554.07
Amount paid in during the year 137,354,44
___________
Total 226,908.51
From which deduct expenditures during the year 221,491.91
___________
Which leaves to the credit of the patent
fund January 1, 1862 5,416.60
===========

No. 5.

Table exhibiting the business of the office for twenty-five years
ending December 31, 1861

The receipts of the past year have fallen $118,998.15 below those of the previous year; and the expenditures, omitting the above $25,791.90 as extra, have been $51,220.79 less than those of 1860. The cause of this great falling off of receipts must be apparent to every reader. The great inventive mind of the country has been attracted in another direction by the startling scenes of rebellion which have transpired. A state of civil war has deprived this office of the patronage of most of the slave-holding States; the enterprise of the loyal States has, to a great degree, been paralyzed, and the sale of patent rights, as an article of traffic, has, in a great measure, been abandoned.

To provide for this state of affairs, I have been compelled to resort to a most rigid economy. To bring the expenditures as nearly as possible within the ability of the office to meet them, by way of retrenchment I dismissed five principal examiners, five assistant examiners, and five second assistant examiners. The compensation fixed by law of the principal examiners is $2,500; the assistants, $1,800; the second assistants, $1,600. The business required that seven of each of these classes should be retained; but a still further reduction of expenditure being necessary, I dismissed the principal examiners and appointed them assistant examiners, and they are now receiving but $1,800 per year; the assistant examiners were dismissed and appointed second assistant examiners, at a salary of $1,600; the second assistants were dismissed and appointed clerks, at an annual salary of $1,400. These officers, however, have all been performing the duties pertaining to their original positions. A large reduction was also made in the salaries of the clerks. The temporary clerks, who formerly received ten cents per one hundred words for copying, are now paid but eight cents. This was regarded as a legitimate reduction, as the office receives for such work, by law, the same compensation formerly paid the clerks, while the expense of superintending clerks, stationery, etc., exceeded five thousand dollars per annum. A large number of laborers, watchmen, and attendants have been dismissed, and their places are now vacant. The reduction of the salaries of the examiners and clerks has been very onerous to them. The expenses of living in this city are largely increased by the centering here of a large army, and the attraction of thousands of civilians, who largely consume the necessaries of life, which, at all times, are less abundant here than in many other portions of the country. The military necessity, which required the closing of the communication between the farmers of Virginia, from whom a greater part of the usual supplies come, and the market of this city, has contributed much to the expense of living in Washington. For these reasons I respectfully submit to Congress the justice and propriety of conferring upon the Commissioner of Patents authority to refund the difference in the salaries of the examiners and clerks, between the amount allowed by law and that now received by them, whenever, in his opinion, the funds of the office will justify it.

The 14th section of the act approved March 2, 1861, provides "that the Commissioner of Patents be, and is hereby, authorized to print, or, in his discretion, cause to be printed, ten copies of the description and claims of all patents which may hereafter be granted, and ten copies of all drawings of the same, when drawings shall accompany the patents: Provided, the cost of printing the text of said descriptions and claims shall not exceed, exclusive of stationery, the sum of two cents per hundred words for each of said copies, and the cost of the drawing shall not exceed fifty cents per copy; one copy of the above number shall be printed on parchment, to be affixed to the letters patent; the work shall be under the direction, and subject to the approval, of the Commissioner of Patents, and the expense of the said copies shall be paid for out of the patent fund."

In accordance with this provision of the law, and with the approval of the Secretary of the Interior, I contracted with a responsible party for the execution of the work. The issues from he 2d of March to the 1st of November, 1861, were printed in a superior style, and the drawing executed in the most satisfactory manner by the photographic art.

This feature of the law has given eminent satisfaction to the inventors of this country, and has commanded the admiration of inventors and the superintendents of patent departments in many other countries. The imperative necessity which required it to be suspended was and is greatly to be deplored; but I earnestly hope that Congress will take the necessary steps to resume it at as early a day as practicable.

The importance of furnishing to the public the most complete practicable information in relation to every patented invention is obvious. Each patent, as the name implies, should be open to the perusal of all, and as it has the effect of a law should be published at the public expense, as all other laws. The people of the country should have full information as to all patented inventions, firstly, that by a knowledge of the full extent of the exclusive privilege claimed by the holder of a patent they may not be exposed to damages for infringing upon it; secondly, that they may not be induced to believe that the holder of a patent has exclusive privilege for more than is described and claimed in his specification; thirdly, that they may be informed as to the actual progress of the useful arts and avail themselves of the most useful inventions; and fourthly, that the whole inventive genius of the country may be stimulated by the examples and suggestions furnished by descriptions and representations of each year's inventions.

Congress has evinced its appreciation of the importance of furnishing such information by the large appropriations which it has heretofore authorized for the publication of the mechanical reports of this office. I have been furnished by the Superintendent of Public Printing with a statement of the cost of printing, paper, binding, etc., of the mechanical report of this office for each of the last three years, which is as follows:

These reports contain merely brief abstracts of the specifications made originally by examiners in the office, and latterly furnished by individuals out of the office by contract, and consequently prepared with the least possible expenditure of labor and expense, with the claims generally unintelligible, without the full description contained in the specifications. Meager and unsatisfactory as these abstracts are, the reports have been most eagerly sought for the public. The publication of these reports will, I think, prove to have been most wisely suspended, if the substitute can be provided which was intended to be secured by the late law.

In making provisions for this great public want Congress should not be unmindful of the examples of other nations most advanced in the mechanical arts. In Great Britain, France, Sardinia, and Belgium, the specifications are published in full, and in such a form that printed copies may be furnished to all who may apply for them, at cost price, while the entire publications are extensively distributed for the free use of the public. In Prussia, Saxony and Bavaria, official journals are published containing full abstracts and lists of the specifications of patents. The publications of specifications of patents made by the French government consist of 91 volumes, quarto, of the old law, and 35 volumes, quarto, of the law of 1844. All which have been presented to the library of this office.

In Great Britain the publications of the specifications and drawings of patents has been made upon a scale of magnificence which entitles it to be regarded as one of her great national works. The great seal patent office has published the complete specifications and drawings of patents granted by that office since 1623, in two series, the old law series from 1623 to 1852, and the new series from Oct, 1852, to the present time. The old law series, comprising 12,977 patents in number, are contained in about 900 volumes, 450 folio volumes of drawings, and the like number of imperial octavo volumes of letter-press. The indices form seven imperial octavo volumes. The cost of these works in 1859 amounted to œ92,000. The expense of printing for 1859 was estimated by the Commissioner of Patents at œ17,500.

The publications of the great seal office consist of the specifications and drawings of patents granted, (the drawings are not photographic,) a subject-matter index of patents, an alphabetical index of patentees, a chronological index of patents, commissioners of patents journals, (published semi-weekly,) assignments of specifications of various classes of patents, of which twenty volumes have been published, and all are in course of publication.

The publications are distributed among one hundred and seven libraries and offices in Great Britain, twenty-six libraries in the British colonies, and twenty-two in foreign countries. Of these last, six are in the United States; the cost of which has been upwards of œ10,000. The cost of the continuation is at least $1,500 weekly. For these costly works our government has been able to make no return except for the meager abstracts heretofore published by us.

No attempt has been made in the publications ordered by me, under the provisions of the late law, to imitate the costly works published by the great seal office; but the publications, though not wanting in taste and finish, are believed to be of equal practical value. Many advantages have already been presented by a brief trial of this system in this office, among which may be mentioned the readiness of inventors to furnish more artistic and detailed drawings, at a greatly increased expense, with the view of exhibiting these inventions to the best advantage; a change which would greatly facilitate the examinations of the office as well as aid inventors in making inquiries as to the patentability of their inventions. Through the improvements in the drawings, thus effected, and by the adoption of the photographic system of illustration, it is believed that the publications, if continued, would surpass in practical value those of Great Britain.

The depressed condition of the financial affairs of this office, incident to the state of the country, has alone induced me to abandon the wise provision of Congress, requiring the printing in full of the specifications and drawings of the patents issued from this office. From a careful examination of the matter, I am induced to believe that if Congress were to appropriate a sum sufficient to defray the expense heretofore incurred in the printing of the specifications and drawings of the patents, and which will not exceed one-half the sum heretofore expended from the general fund of the government, the office will be able hereafter to meet the expense thus to be incurred. This will enable those who desire copies to secure them at a small cost comparatively with what they now have to pay for manuscript copies. I am induced to believe that an appropriation of fifty thousand dollars for the present year would enable the office to carry out this most salutary provision of the law of the last Congress. An abandonment of the publication of the mechanical reports, rendered unnecessary by the printing of the specifications and drawings, under the law of March 2, 1861, would save to the government, after making the appropriation above requested, the sum of $ [blank space in document]

The restoration to the Patent Office fund of the amount withdrawn from it in conformity with the provision of the law of March 2, 1861, would be an act of simple justice to the inventors of the country, by whom this fund has been contributed. It would seem to be inequitable for them to bear the expense of introducing a new system of publication, the benefits of which are not for themselves but the general public. It is believed that this charge would not have been imposed by Congress upon the patent fund, if the diminution of then existing surplus fund, in consequence of the financial difficulties of the country, had been anticipated. The inventors have already been heavily taxed for the erection of the Patent Office building. There has been contributed by the patent fund for this purpose.

By act of July 4, 1836 $108,000
By act of March 3, 1849 50,000
By act of May 15, 1850 90,000
By act of September 30, 1850, appropriating $110,000,
if so much remained in the patent fund 71,000
_________
Making the whole amount contributed 319,000

The appropriation of this fund is justified only by the consideration that the inventors derive the most immediate benefit from the use of the Patent Office building. It cannot be doubted that the whole patent fund should be preserved for the use of those who contributed it, and certainly that the efficiency of the office for whose support this fund is primarily intended should not be impaired by the diversion of any part of it for secondary purposes. Congress has heretofore recognized the propriety of reimbursing the patent fund for all sums withdrawn for the benefit of the general public. Appropriations had from year to year been made of sums to be paid out of the patent fund for the collection of agricultural statistics and the purchase of seeds. By the act of March 3, 1855, the sum of forty thousand and seventy-eight dollars and seventy-eight cents was appropriated by Congress, to be paid out of any money in the treasury not otherwise appropriated, for the reimbursement to the patent fund of the whole amount thus withdrawn from the fund for the purposes above mentioned.

It is important to observe that it is indispensable that the printing of these publications should be done under the immediate supervision and control of the office. The specifications and drawings should not be removed from the office, as they are in constant demand for reference, and the inventors demand that there should not be a day's delay in issuing the patents after their date, which will always be liable to happen if the work should be done with other public printing. The type should be set up within the office, directly from the specifications. By doing this the cost of copy for the printer and the cost of recording the specifications will be saved, both of which are necessary when the setting of the type is done out of the office. The saving in these two items are the most important elements of the practicability of continuing the printing at the expense of the office.

As these publications, if continued, will be intended to supply the place of the former Patent Office Reports, and the gratuitous distribution to individuals will, of course, be dispensed with, some provision should be made to place them before the public. A sufficient number might be purchased by Congress at the same rate that may be charged to individuals, to place them in the most important libraries in each State, and to make exchange demanded by national courtesy with foreign governments. A thousand copies, it is believed, will be sufficient to communicate the information as to the inventions of this office as effectually as has been done by the gratuitous distribution to individuals of the former reports.

PROPOSED AMENDMENTS

By the law of March 2, 1861, it is provided that on filing each original application for a patent, except for a design, fifteen dollars shall be paid, and on issuing each original patent, twenty dollars. Practically, this postponement of the payment of the final fee operates disadvantageously to the office. The evidence of the truth of this statement is found in the fact that more than four hundred patents which have been ordered to be issued are now in the office awaiting the payment of twenty dollars. Thus the office is deprived of more than eight thousand dollars, for which it rendered its time and labor. If this provision should remain as it now is the number will largely increase, and, of course, will prove a great loss to the fund, and may prove the source of endless litigation. It may be further observed that, until the additional fees are paid on these applications, each operates as a caveat which may be perpetual without the yearly renewal and fee required in other cases for perpetuating caveats, the public deriving no benefit from the publication of the patents, and other inventors being excluded from obtaining patents for the inventions. I would respectfully suggest that the law be amended, either by restoring the former provision, that the whole fee be paid on making the application, twenty dollars to be repaid to the applicant when the application is finally rejected and withdrawn; or that the application fee, intended to cover the expense of examination, should be increased to twenty-five dollars, and that ten dollars should be required on the issuing of the patent.

The avowed object of the second section of the act of the 2d of March, 1861, is "securing greater uniformity of action in the grant and refusal of letters patent." This is attempted to be effected by the creation of three examiners-in-chief, whose duty it is made to "revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent, and in interference cases." It was expected by this means to relieve the Commissioner of a portion of the labor of the duties of office imposed upon him, but has utterly failed to secure this last-named object.

As now constituted under the law, the examiners-in-chief form a tribunal independent of the Commissioner in all cases of rejection or interference decided by the examiner. An appeal lies from the examiner to them, from them to the Commissioner, and from him to one of the judges of the circuit court of the District of Columbia.

The chief justice has decided that an appellant must go through each tribunal before the judge of the circuit court can take jurisdiction of the case.

This state of the law and practice is far from beneficial to the public, and does not tend to secure greater uniformity of action in the grant or refusal of letters patent, and does certainly greatly augment the labor of the Commissioner. The act, in my opinion, should be so amended as to render the duties of the examiner-in-chief advisory only, so that an appeal, as formerly, may be taken from the examiner or from the Commissioner to the circuit court. All appeals should be taken from the decision of the examiner directly to the Commissioner, who could then refer it to the examiners-in-chief, or, if his time permitted, hear it in person.

The disturbed condition of the country has brought to view a deficiency in the patent laws with respect to the protection of the rights of assignees of inventions, which demands the attention of Congress. In many cases patents cannot be awarded to applicants except upon amendment of their specifications and claims. After an application has been once examined and rejected, the law requires a renewal of the oath of invention, by the inventor, before the amended specification can be re-examined. Cases have lately arisen where an inventor having filed his application for a patent, and assigned his whole interest in the invention, has disappeared or is non inventus, after the first examination and rejection; although in such case the defects in the specification might be cured by amendment, the inventor cannot be found to renew the oath required by law, and the assignee, the actual holder of the invention, is without remedy. In case of the death of an inventor before a patent shall have been granted for his invention, the right of applying for and obtaining a patent therefore devolves, by law, upon his executor or administrator. I would recommend that provision be made, by law, that when the inventor after making his application and assigning his invention may not be found, the right of renewing the oath of invention and amending the specification shall devolve upon the assignee.

It is difficult to conceive of any substantial reason for the provision contained in the 7th section of the law of 1836, which requires that an applicant for a patent, before making any alteration of his specification, "shall be required to make oath or affirmation anew." It is certain that no protection to the public is secured by this provision, while the requirement is a matter of great inconvenience to the applicant and the office. The inconvenience of this requirement has been greatly increased, in consequence of the reduction in fees made by the law of 1861. Applications from Europe and California have often been delayed for months for the renewal of the oath required, before the slightest amendment could be made. I would recommend that the laws be so amended as to dispense wholly with the renewal of the oath of invention.

COPY-RIGHT

The duties connected with the custody of all books, maps, and other publications deposited in the Department of the Interior, according to the laws regulating copy-rights, having been imposed upon the bureau, for the execution of which duty a yearly appropriation is now required, I beg leave to recommend a reform which will not only save this expenditure but secure other important advantages to the public.

By the act of Congress approved May 31, 1790, it was required of every person desiring to secure a copy-right, to deliver a copy of the work to the Secretary of State within six months of its publication, "to be preserved in his office." This requirement continued in force under the amendment to the act approved April 29, 1802, and by the "act amending the several acts protecting copy-rights," approved February 3, 1831, it was required that a copy of the work should, within three months of its publication, be delivered to the clerk of the district court of the United States of the district wherein the author or proprietor should reside, and that it should be the duty of the clerk once at least in every year to transmit all copies of works thus received to the Secretary of State, "to be preserved in his office." By an act approved February 5, 1859, the Secretary of the Interior was substituted for the Secretary of State, and all works and records heretofore received were ordered to be transmitted by the latter to the former, no change in any other provisions of the copy-right law being made.

It appears, therefore, that for a period of seventy years, from 1790 to 1860, one copy of every work claiming security of copy-right has been required by law to be deposited in an executive department of the federal government for a period of forty years by the author directly, and for thirty subsequent years through the agency of clerks of the United States district courts. The result contemplated by this requirement was a collection of copy-right matter at the national capital in the lapse of years, as valuable as it would be interesting, and it is to be regretted that circumstances should have tended in any degree to defeat this end.

The earliest record of the receipt of a copy-right by the Secretary of State bears date January 19, 1796, although copies of two works, one dated 1794, and the other 1795, are found in the library, of the receipt of which no record exists. From 1796 to 1831, during which period copy-rights were required to be transmitted directly to the Secretary of State by the author or proprietor, the record of certificates of receipt is unbroken; and during the eleven years from 1831 to 1841, both inclusive, the register of works received at the Department of State from United States district courts, under the act of the former years, seems equally perfect. But here ceases all record or register at the Department of State of copy-rights received; and for a period of twenty years, when a register was commenced at this office, whither the service had been transferred, the only source available from which could now be compiled a complete catalogue of all the copy-rights entered during that period in the United States, are the lists and records, more or less perfect, transmitted more or less regularly by the clerks of the United States district courts, in accordance with the act.

From 1796 to 1831 the whole number of copy-right works actually received at the Department of State was 2,212, whilst the whole number of the same period received from the Department of State in 1859 at the Patent Office was but 929, or less than one-half. The whole number of copy-rights received at the State Department from 1831 to 1841, both inclusive, was 10,073, whilst the whole number received at the Patent Office in 1859 was 6,017. The whole number received at the State Department from 1841 to 1859, both exclusive, is estimated in round numbers at 40,000., whilst the whole number received for the same period at the Patent Office did not exceed 30,000.

Out of some 50,000 copy-right works, therefore, deposited in accordance with law, to be preserved, from 1790 to 1859, less than 40,000 are now to be found. It appears, also, from careful comparison of the records of applications for copy-right with the list of works received for a series of years, that not more than two-thirds of all the works for which a copy-right is requested are ever deposited with the clerks of the district courts of the United States, as is required by the act of 1831, or, if so deposited, are ever transmitted by the clerks to this city, as is also required.

The evil resulting from the continuance of such a state of things is too obvious to demand comment. It is easy to suppose a case in which the absence of copy-right work from the place where the law requires it to be found, when called for as a legal voucher, might prove extremely detrimental to the interests of its proprietor, especially when it is considered that judicial decisions hold that proof of the fulfillment of the act in the minutest particular is indispensable to the security of the right.

The copy-right works now received at this office are carefully registered and preserved, and this done at an annual expense of more than $1,600. That this service may be rendered self-sustaining, like the Patent Office, can be readily demonstrated, and thus a saving of the above-named amount be made to the treasury.

At the Stationer's Hall, in London, all applications for copy-rights in England are made; from thence all certificates on the subject are issued, and there all works are received for preservation. The same service could be performed at the Patent Office for the United States, and be sustained by the same amount of fees now allowed clerks of the United States district courts by the act of 1831.

Under the existing law, the perfecting of a copy-right is made dependent on the performance of certain duties by district clerks of the United States, no penalty being prescribed for neglect of those duties. These officials are not subject by any law to the directions of the department or office charged with the superintendence of the service. Hence, with perfect impunity, a clerk in one of the districts has for eight years refused to transmit either records or copy-rights to this office, in obedience to the law, on plea of insufficiency of compensation. Other clerks are equally negligent of their duties. The present system has utterly failed to secure the object contemplated by the original enactment, and so valuable to those authors who desire protection for their works. Had the plan now suggested been carried out with the same fidelity as has been the Patent Office, we would now have a copy of almost every hook, pamphlet, map, chart and musical composition ever published in this country. I need not enlarge upon the value of such a collection.

It is a subject of congratulation, to which I am happy to refer in closing this report, that notwithstanding the occupation of the public mind with the paramount thought of defending the government, and the apparent diversion of so much activity from peaceful to military pursuits, the business of this office, so sensitive to any financial or industrial change, shows a vitality in the industrial arts of the country not to have been expected in time of war. Of the applications for patents made during the month of December last, arranged according to the classification of the office, there were, in the classes of --

It appears by this statement that 420 were for inventions in the peaceful arts, and 58 only in implements of war. Although some of the former are adapted for military use, it would be safe to say that five sixths are inventions connected with productive industry -- a proof that the productive interests of the loyal States have not been materially disturbed by the national convulsion.

As the power to maintain war depends upon the productive labor of the country, and the capacity of production is increased by new inventions, it is hoped that Congress will regard the encouragement of an institution which stimulates and protects the inventive resources of the country as not simply a duty, but a national necessity.